i bet there are places like that. i've encountered federal magistrate judges who were on receptive to receiving warrant applications in the middle of the night. that is known to exist. suppose you have a jurisdiction like that. does that count as a circumstance that would justify a warrant was taking about? >> i would say no, your honor. i don't think the ci to take advantage of its own failure to expedite. >> supposed to magistrate is unavailable because he or she is though. >> is a different situation. we should but she agreed that the next circumstance to allow it walk the split sample? >> i think it might well ask there is no alternative magistrate. >> that's a separate question. one of your argument is you need individually circumstances. you can't have a per se rule and now this other set of questions about what you care to count in totality of the circumstances test 378? so one could disagree with you what you think is justice alito, justice kennedy suggested, you know come you do take into account it's the mid